82 Kan. 691 | Kan. | 1910
The opinion of the court was delivered by
This was an action by the Northrup National Bank against S. C. Varner and the Bankers Surety Company, the surety on the bond given by Varner as receiver. In an action involving an oil-and-gas lease which included several oil wells, Varner was appointed receiver, and in compliance with an order of the court gave a bond in the sum of $1000, signed by the Bankers Surety Company. The receiver took charge of the oil wells and other property, and in order to carry out his trust it was found necessary to borrow money. On the authority of the court he borrowed $300 from the Northrup National Bank and gave a receiver’s note for the amount. To meet other demands he obtained authority from the court to borrow a further sum of $500, and this amount was also obtained from the bank. On the representations of the receiver the
It is contended by appellants that the bank is not within the protection of the bond. It recites that the obligors “are held and firmly bound unto the said Missouri & Kansas Oil & Gas Company, the Summerset Oil Company, Jacob Geiger and William E. String-fellow, their successors and assigns, and all. persons interested or having an interest in the property.” The contention is that “persons interested or having an interest in the property” covers only parties whose property passed into the custody and control of the receiver, and that the bank, which loaned money to the estate, is not within the terms or meaning of the bond. This is too narrow a construction of its provisions. The protection and management of the property or fund was the purpose for which the receiver was appointed. Everyone who contributes to the trust funds, either in labor or money, under the direction of the court, is interested in that fund and property. A party found by the court to be entitled to a share of the trust fund is interested in it. The bank, which loaned its money to the receiver with the approval of the court, and in that way added to the fund, is as much interested in the property or fund as the one from whom it was transferred to the receiver. Parties who contributed to the fund, as the bank did, after the bond was given could
It is further contended that the failure of the receiver to pay the money as the court ordered is not a breach of the bond. The bond recites:
“Now, if the said S. C. Varner shall well and truly perform the said trust imposed, and make due report of his said trust to the court, as ordered by it, and make true account of all moneys and property which shall come into his hands by reason of said appointment, then this obligation shall be null and void. Otherwise to remain in full force and effect.”
When the receiver failed to pay over the money as the court directed he failed to perform his trust as the bond required, and a liability upon the bond arose. He was an officer of the court, and undertook to care for and manage the trust as the court should direct, and when he failed to comply with its orders in closing up the trust there jyas a breach of the bond, for which he and his surety were liable.
It is said that the judgment of the court as to the distribution of the fund is not conclusive against the surety. It is not necessary to inquire whether the surety is concluded by'that judgment. It was at least competent evidence in the action against the surety to show the default of the receiver and the breach of the bond. (Commonwealth v. Gould, 118 Mass. 300; Beach, Receiv. [Ald. ed.] § 201.) In this action the surety was a party and had the opportunity to contest the question, and the court, presumably on sufficient testimony,' has found and adjudged that-there was a breach of the bond and that the principal and surety were liable'on it for specific amounts.
It is contended further that the claim of the receiver
The item of costs collected by the receiver belonged to the estate which he was managing. He is responsible for that money, and the surety is liable for his default
There is nothing material in the objections made byVarner, and we see no reason to disturb the judgment of the'trial court against either party. It is therefore-affirmed.